Geiger v. Rapoport

137 N.Y.S. 753

• Court: Appellate Terms of the Supreme Court of New York
• Decided: October 23, 1912
• Status: Published

Opinion

BIJUR, J.

One of the questions litigated on the trial was whether a strike called in defendant’s factory, in which strike plaintiff participated, was a genuine strike or a collusive one, instigated by the defendant in order to afford himself an excuse to discharge the plaintiff. This question involved the question whether the price to be paid for making a certain garment in defendant’s factory had been “fixed” by and between defendant’s foreman and a price committee of the workmen. Plaintiff’s counsel, in summing up, commented on the failure of defendant to call as witnesses the members of the price committee, adding thereto, “Doubtless they are still in the employ of defendant.” At the close of the case, after the judge’s charge, defendant’s counsel requested the court to charge the jury as follows:

“By reason of some comment made in summing up, I also ask your honor to charge that no inference may be drawn against the defendant by reason of his failure to call the price committee.”

This the court refused to charge, and the defendant duly excepted. On settlement of the case, the remarks, of .plaintiff’s counsel, hereinabove referred to, were stricken from the record. They should, in my opinion, be included therein, as the point sought to be raised by appellant on the appeal in respect thereof is substantial; and in his request to charge defendant referred to and sufficiently identified the portion of the summing up intended to be designated.

Order reversed, with $10 costs and disbursements, and the learned judge below directed to resettle the case in accordance with the above. All concur.